Jeteld Pty Ltd v Toowoomba Regional Council (No 2)

[2009] QPEC 83

[2009] QPEC 83

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3263 of 2008

JETELD PTY LTD (ACN 009904456)	Appellant/Applicant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 05/08/2009

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 4.1.23 - Planning and Environment Court Rules r 29(3)

Appeal by applicant developer - appellant seeks that parties' water supply experts who have completed their joint report meet again - appellant's expert now concerned that modelling underlying his agreement that certain water infrastructure was appropriate was unreliable - existing directions vacated to allow formulation of additional issues and further activity by the experts - respondent's application for costs adjourned for later determination

HIS HONOUR:  The court makes an order in terms of the initialled draft, which is a heavily amended version of the one proffered by Mr Connor, appearing for the applicant appellant.

The order vacates certain paragraphs of the Court's order of the 14th of May 2009 and is preceded by preamble in the following terms: "Upon the Court being satisfied that it is appropriate that the water supply experts be given leave to give evidence about the facts, matters and circumstances contained in paragraph 7 to 9 and 11 of the affidavit of Trevor Charles Johnson filed the 3rd of August 2009" and the additional issue in dispute identified in paragraph 8 of the amended Notice of Appeal, a copy of which is exhibit MJC3 to the affidavit of M J Connor filed 22nd of July 2009 relating to condition 70 to the extent necessary."

The significance of the orders which follow is to permit additional evidence to be provided by Dr Johnson, which may prove to be at variance from what he committed himself to in a joint report with the Council's expert, Mr Gray.  His affidavit indicates that he may have accepted, as reliable and appropriate, modelling made available by Mr Gray, which modelling is apparently challenged by another consultant engineer who has been assisting Dr Johnson; namely, Mr Doyle.

Part of the earlier order, which is vacated, stipulated that "Save by leave of the Court, experts may not give evidence at the hearing which differs from that contained in a joint experts report to which the expert was a party."  That is consistent with Rule 29(3) of the Planning and Environment Court Rules 2008, which provides that a further statement of evidence "must not, without the Court's leave, contradict, depart from or qualify an opinion in relation to an issue the subject of agreement in the joint expert report or raise a new matter not already mentioned in the joint report."

...

HIS HONOUR:  The order of the 5th of February 2009, although it doesn't say so, was doubtless made by consent of the parties and probably not the subject of particular thought by the Judge.  A later order of the 14th of May 2009 vacated certain paragraphs of the February order but not paragraph 6, which picks up Rule 29(3).

I am firmly of the view that the parties at this relatively early stage of the proceeding ought not to be prevented from identifying and presenting their best case at the ultimate hearing. The approach which the Court ought to take is that indicated by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. [On the day of the hearing, unknown to the parties or to the court, the High Court published reasons in Aon Risk Services
Australia Limited [2009] HCA 27 which significantly confine the future application of J L Holdings.]

The complicating issue here in the Planning and Environment Court is that the balm of costs, which the High Court envisaged being utilised to overcome prejudice flowing from amendments, delay, etc, is not available except on the limited bases set out in section 4.1.23(2) of the Integrated Planning Act 1997. It would be odd if, as a general rule, the restrictions on the Court's ability to make costs orders were allowed to control matters when what was at issue was providing a fair hearing to litigants. That may be one reason for the thought tentatively advanced in Sherringham Holdings Pty Ltd v Maroochy Shire Council [2006] QPEC 115 at paragraph 13 that as far as interlocutory applications such as the present are concerned, those may not be governed by section 4.1.23 but rather by the Uniform Civil Procedure Rules. That question wasn't argued before the Judge who made the suggestion and although it was put up with some diffidence by Mr Tranter when this matter was last before me on 24th of July 2009 - see [2009] QPEC 64 - he did not rely on it today in support of his application for the costs of this particular application which, as Mr Connor had foreshadowed, was filed on the 31st of July 2009. It was followed by the Council's cross-application seeking costs.

My owns view, again expressed in the absence of full argument by the parties, is that it is to section 4.1.23 that the Court must look for jurisdiction to award costs, whether at the conclusion of the proceeding or at interlocutory stages. As of 24th of July, the pertinent paragraph of section 4.1.23(2) is (f), which applies where a party "has incurred costs because another party has introduced (or sought to introduce) new material."

I adhere to the wide view of what constitutes "material" which I took on the 24th of July, and would emphasise that the dictionary definition I had resort to on that occasion was not taken to restrict what might qualify as "material".

The word in paragraph (f) of concern now is "introduce".  That is an obvious problem for a party claiming costs.  My impression at this stage is that "introducing" material is probably a reference to producing that material for consideration by the court in its process of reaching a decision.  It could be seen as premature to say that new material is introduced here in that sense, although of course new affidavits have been filed by the appellant - in particular, one of Dr Johnson containing in some detail an account of Mr Doyle's criticism of the modelling.  It may be mentioned that Mr Gray presents an opposite view that the modelling used was appropriate.  It appears to be the case that the relevant details were made available long ago, giving Dr Johnson and others ample opportunity to scrutinise them.  It is impossible for the court today to form any view about the quality or utility or relevance of the modelling.  As we're here today it's unknown, I think, whether as a result of the new meeting of experts directed by today's order, which will result in a new joint report, new material will be introduced in court in the sense alluded to.  I'm not determining at this stage that (f) does not apply.  I think it is preferable to defer any decision about that. 

Costs are not going to be ordered simply because the jurisdictional foundation for doing so can be found in section 4.1.23. That's but the first step. The considerations bearing on whether the discretion ought to be exercised to order costs at the end of the day will be many and various. Of course, they're unpredictable.

In the present context, for example, it might turn out that further work undertaken by the experts is work that ought to have been done all along so that in a no-costs regime it will be inappropriate for the appellant to have to pay the cost of that work that ought to have been done anyway without any prospect of the appellant being liable to pay for the costs imposed on the Council.  There may be all manner of considerations bearing on Dr Johnson's having changed his mind if it turns out that that is what he does; it may not be right, for example, to regard as blame-worthy his having accepted at face value modelling work or the results of modelling work presented by a fellow professional.

I was not particularly sympathetic to Mr Connor's submission that, for all sorts of reasons, steps taken in the court may have to be repeated and that the court ought to be particularly cautious about visiting costs consequences.  I'm not sure that he would have made the submission so enthusiastically had the boot been on the other foot, so to speak, and had it been a public authority such as the Council introducing new material in the appeal and necessitating the repetition of the work.

It's the case that in SRG Management Services Pty Ltd v Gold Coast City Council [2009] QPEC 15, where an order for costs was made in circumstances similar to the present, with no opposition to that course being taken by her Honour, who resolved against the applicant for costs a request that they be ordered to be paid on an indemnity basis. I venture to suggest that the outcome in SRG Management would have been the same, had the appellant there resisted the making of the costs order. In the ordinary course parties ought not have to repeat steps, at least at their own expense, if the cause is some deficiency in the way the adverse parties have run matters. I appreciate that in this day and age experts may be seen as having a special status, that they are not controlled by the litigants who engage and remunerate them - no-one would any longer suggest that they ought to be. That raises a question of whether the court ought to take special care in saddling the litigant with the responsibility for extra costs which flow from something the expert has done or failed to do. It can't be said, however, that if there is a deficiency, as things appear at the moment, it occurred on the appellant's side and not the Council's. The future will show whether additional evidence that might be presented to the court changes the appearance of things in that regard.

Although those comments bear on the costs issue, they apply more generally in respect of the more basic one of whether the court ought to grant leave for the purposes of Dr Johnson being able to give evidence different in effect to what is in the joint report he has subscribed to. Mr Connor suggested that Rule 29(3) amounts to an invitation to litigants to seek the court's leave. The notion, which is reflected in many places in rules of court - and in particular, in the UCPR - is that the court ought to be placed in control of what a litigant may do. The contexts will be many and various. There may be some in which there ought to be a predisposition to grant leave, for example, to amend a claim, at least where there are no limitations issues. I'd be hesitant to say there ought to be a predisposition to grant leave for the purposes of Rule 29(3). There may be other contexts in which the predisposition would be against granting leave to withdraw admissions, for example, I do not think an expert's acceptance of a view is tantamount to an admission by the party engaging him or her. In my view, the present is a clear case. The interests of justice - and indeed, I would say all concerned - are best served by the court's assisting the parties to identify what really is or ought to be in issue. [We are far short of the advanced stage the proceedings had reached in Aon Risk when amendment was allowed.]

There will be an order in terms of the initialled draft, which incorporates directions calculated to preserve the appellant's opportunity of a hearing for 2 days in the October pool.  Times get very tight in consequence of indulgence granted to suit Mr Gray, who won't be returning from leave for 12 days or so.  He is entitled to his leave in my view.

I've undertaken to mention the appeal myself in advance of the callover set for the 14th of September 2009 on the Friday before, although that is also the date of mediation directed by my order, and the date when expert reports of witnesses are to be exchanged.  That's unorthodox but done in the interests of preserving the appellant's prospects of an early hearing date.

I've added to Mr Connor's draft paragraph 9 (with the consequence that his "liberty to apply" becomes paragraph 10) "reserve and adjourn to a date to be fixed the respondent's application for an order that the appellant pay its costs of the application and its costs thrown away by the meeting of experts being reconvened and their providing a further joint

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